E Pihl & Sons AS v Manufotu [2002] WSCA 4; 07 2002 (2 December 2002)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 7/02

BETWEEN

E PIHL & SONS A.S. and A/S RORBYG
of 116 Nybroyej 2800 Lygnby, Denmark and
A/S RORBYG
Industrial Holmen 80, 2650 Hridovre, Denmark
carrying on business in Samoa as the
PIHL RORBYG JOINT VENTURE at Fuluasou.
Appellants

AND

OLI MANUFOTU
(an infant who sues by his guardian ad litem
TUTASI MANUFOTU IONATANA)
Respondent

Coram: The Rt. Hon. Lord Cooke of Thorndon, President
The Rt. Hon. Sir Maurice Casey
The Rt. Hon. Sir Gordon Bisson

Hearing: 25 November 2002

Counsel: Semi Leung Wai for Appellant
Ameperosa Roma for Respondent

Judgment: 2 December 2002

JUDGMENT OF THE COURT
DELIVERED BY SIR MAURICE CASEY

[1] This appeal is against the award of $66,000 general damages for negligence made by the Chief Justice on 25 June 2002 to the respondent, Oli Manufotu, for injuries he suffered to his right hand when it was caught in a circular saw being operated by him in the course of his employment with the appellants on 15 August 2001. Although a number of grounds were detailed in the Notice of Appeal, in this Court the appellants’ principal complaints were that the award was excessive, and that the Chief Justice had settled on a global sum without allocating separate figures for each of the three conventional components of personal injury damages - namely, pain and suffering; loss of amenities and enjoyment of life; and future economic loss.

[2] The respondent was 18 at the time of the accident and appears to have been a good worker who was advanced to the responsible job of feeding timber into the saw after a few months of general carpentry work. With substantial overtime, he was earning $133 per week net, while His Honour thought his wages for a forty-hour week may have been about $70 to $80. In the accident he lost the top joint of his little finger, and suffered serious injury to the ring and index fingers, and minor lacerations to the middle finger. He was in great pain and was admitted to hospital where he underwent a five-hour operation under general anaesthetic, but required a further operation on 22 August to amputate the index finger because of complications in blood circulation. He was discharged on 27 August and was given tablets and injections over this period to relieve his pain. He attended as an out-patient for a further two weeks for checks up and changes of dressing.

[3] After his discharge the respondent was re-employed by the appellants, doing simple jobs around the site at his pre-accident wage, but was dismissed after week for what appears to have been a very minor episode of misconduct. He has not worked since and has been living at home, apparently making no attempt to find paid employment. In his judgment the Chief Justice summarised the evidence under the appropriate heads of general damages, dealing first with the respondent’s pain and suffering, which was clearly substantial around the time of the accident. He noted that he still experiences pain when his fingers contact a hard object, but he did not expect this to be permanent. Turning to loss of amenities and enjoyment of life, he rightly observed that the loss of the index and part of fifth fingers and the inability to straighten the ring finger were very serious matters. The respondent is right-handed, and can no longer play his sports of rugby, volleyball and cricket, and also suffers a substantial loss of the ability to carry out ordinary domestic jobs. His Honour accepted that he cannot fully grasp the handle of a bush knife or axe with his right hand, nor can he plant taro or carry out any other task requiring the use of that or both of his hands. There was also a degree of embarrassment in public arising out of this deformity.

[4] His Honour discussed at some length the loss of future earning capacity, accepting that at the age of nineteen the respondent would have a working-life expectancy of about 36 years, with little prospect of employment in carpentry work, or indeed in any manual work requiring the use of both hands. He appears to have adopted the wage the respondent was earning without overtime ($70 - $80 per week) in his previous employment as an indication of his future weekly earning capacity, but he accepted that might have earned more, and he also mentioned the risk of future disability along with the other vicissitudes of life. Finally he said that verdicts in other personal injury cases could be relevant considerations, observing that there were none on record involving hand injuries, but he discussed the award in Western Samoa Shipping Corporation v Iosefa Feagai (CA 6/93; 22 March 1994), in which this Court upheld $52,000 general damages for a 20-year old manual worker who suffered an injury to his right leg which left him with a permanent limp.

[5] The substantial feature in that case appears to have been the plaintiff’s loss of enjoyment of life. There was no evidence of any future economic loss, but the trial Judge accepted there would be a loss of earning capacity over a working life of 30-40 years. He started with a global assessment of $30,000 for the injury and its effects, and added $2,000 for pain and suffering, $10,000 for loss of amenities, and $20,000 for loss of earning capacity over a working life of 30-40 years From that total of $62,000 he apparently made discount of $10,000 to ensure that compensation was not given twice for the same damage under separate heads. This Court expressed reservations about the way he had reached the total of $52,000, commenting at pp 9-10 that in assessing general damages in these cases it is better to adopt the three traditional subdivisions, "even if in the final award separate amounts are not attributed to them..........We are inclined to the view that it is not desirable to break down the award as precisely as the Judge did. That strategy could give an impression of exactitude which is not warranted".

[6] Those comments were directed at that particular case, prompted by the Judge’s initial assessment of $30,000 without any indication of the factors which had influenced him in reaching that figure, to which he then added and subtracted other items. This exercise obviously gave rise to a misleading impression of rational calculation, and the Court was left with the suspicion that there had been an overlapping of categories, resulting in more compensation being awarded than was merited on the facts. However, while on the high side, it was not thought to warrant appellate interference.

[7] We wish to make it clear that the Court did not intend that trial judges in personal injury cases should make no assessment of appropriate figures for damages for each of the three traditional categories outlined above, though they need not be particularised in the full figure finally awarded for general damages. But the judge should always indicate how that figure was made up, as is the practice current in Australia and England - see for example Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 and Pickett v British Rail Engineering Ltd [1980] AC 136 (HL). The reasons are summarised in par 1.5.2 of Luntz: "Assessment of Damages for Personal Injury and Death" (Butterworths Australia 2002). They are to facilitate the task of appellate courts in determining whether to uphold the award; to ensure the proper calculation of interest on any part on which interest is payable; and to enable the parties to know how the damages have been calculated, so as to be in a position to challenge any error on appeal. There are many situations, of course, where the amount under a particular head will be incapable of precise calculation, and broad estimates only can be made, based on the trial judge’s own experience and judgment and in the light of comparable awards in other personal injury cases.

[8] Appellants’ counsel submitted that an appropriate award, having regard to local economic and social conditions, would be $35,000, made up of $2,000 for pain and suffering (with which we agree), $10,000 for loss of amenities and $20,000 for loss of earning capacity. We think the $10,000 for loss of amenities and enjoyment of life is far too light for the serious hand deformity this young man suffered, the effects of which were fully explored by His Honour and summarised above. The sum $25,000 seems more appropriate, and is not excessive, even in the light of Samoa’s lower economic expectations by comparison with overseas jurisdictions, where a much higher award would be likely.

[9] Compensation for loss of earning capacity can also be only broadly estimated. As noted, the Chief Justice took a working-life expectancy of about 36 years. We think this is too conservative for an otherwise healthy 19-year old man. He also seemed to settle for a basic 40-hour week loss of earnings capacity at $70-$80 per week, but there is no indication of how he dealt with these figures in his global calculation. The respondent cannot expect his late employers to pay for a lifetime of doing nothing, and he should be able to get at least intermittent paid work, although probably at a wage lower than these pre-accident earnings. It might be reasonable to average out his loss of earnings over his anticipated working life at around $30 per week; and that the ordinary risks of life which still awaited him, such as accident or other incapacity, can be allowed for by adopting the low 36-year working-life mentioned by His Honour. When multiplied out this yields a lump sum of about $55,000, but of course this needs very substantial discounting to arrive at a figure which, with interest, would produce the stated weekly sums and be exhausted at the end of the period. It is usual for accounting or actuarial calculations to be presented to the court for this purpose, but there was no such evidence here and, like His Honour, we are left to do what we can with the material in the record. The best estimate we can make is to reduce this sum to $30,000 for the loss of earning capacity to be included in the general damages.

[10] The total derived from these calculations is $57,000, which is not so far below the $66,000 fixed by the Chief Justice for us to conclude that his award was unreasonable or excessive in order to justify our intervention. It has been said many times that an appellate Court will not interfere with a trial judge’s decision on damages in these cases simply because it may favour a different amount, when the decision has been made within the bounds of a properly exercised discretion. That we find to be the case here, even though the various heads of damage were not itemised, and the appeal must be dismissed.

RESULT

The appeal is dismissed with costs of $2,500 to the respondent together with disbursements to be fixed by the Registrar if the parties cannot agree.

Solicitors
Leung Wai Law Firm, Apia, for Appellants
Amperosa T Roma, Apia, for Respondent